Steven K. Green, Religion Clause Federalism: State Flexibility Over Religious Matters and the "one-way Ratchet"

• Publication year: 2006

RELIGION CLAUSE FEDERALISM: STATE FLEXIBILITY OVER RELIGIOUS MATTERS AND THE

"ONE-WAY RATCHET"

Steven K. Green^*

Professors Lupu and Tuttle's article provides insightful commentary about the renewed interest in a federalism approach to the religion clauses. As their article accurately demonstrates, the federalism argument is more than a debate about how best to read the constitutional text or historical record. It is also a normative debate about the virtues of decentralizing authority and providing flexibility to states and locales to recognize, regulate, and collaborate with religion.¹This important discussion is not taking place in a vacuum; currently, through the Faith-Based Initiative, we are witnessing an expansion of church- state collaborations at the state and local levels that deviate from a unitary, "one-size fits all" model.²The fragmentation of constitutional standards is occurring alongside the most significant decentralization of government authority and services in modern times, represented in the Court's revival of federalism through the Commerce Clause³and Eleventh Amendment⁴and the movement toward greater privatization of essential government functions and services, which was at the heart of welfare reform.⁵Church-state federalism is not an academic issue.

It is tempting to reflexively oppose this renewed federalism impulse. The substance of fundamental rights, particularly those identified in the First

Amendment, should not vary depending on whether one lives in Portland, Oregon or Portland, Maine. However, the decentralization of constitutional authority can have its advantages. It allows for greater flexibility to address local concerns while providing an impetus for innovation and experimentation. Importantly, decentralization also acknowledges the separate sovereignty of states and the competency of local officials and judges to participate in the governing process. I support greater flexibility of states to interpret their own, often more explicit, constitutional provisions more expansively, as occurred in

Locke v. Davey.⁶Usually, this means that state courts will provide greater protection of individual rights.⁷Thus, in Oregon, not only does the State provide for medically assisted suicide,⁸but the interpretation of the state equivalent of the First Amendment affords greater protection for certain expressive activity, such as obscenity.⁹But a federalism approach to the religion clauses may not always result in the enhancement of individual rights. The decentralization of constitutional authority may allow for increased burdens on religious practice, while it will likely invite states and locales to support, acknowledge, and collaborate with religion in ways that deviate from core nonestablishment values. Thus, we should approach with caution (and skepticism) this renewed call for a federalism approach to the religion clauses.¹⁰

I. THE TEXTUAL ARGUMENT FOR FEDERALISM

As Professors Lupu and Tuttle discuss, the federalism critique is based in part on a textual and historical interpretation of the Establishment Clause.¹¹

This approach argues that the language of the Establishment Clause, prohibiting the federal government from enacting laws "respecting" an establishment of religion-or "touching" a religious establishment, as was initially proposed¹²-must be interpreted in light of the fact that several states in 1789 maintained religious establishments.¹³Considering this language in conjunction with the various state practices indicates that "an important function of the Clause was to 'make clear that Congress could not interfere with [existing] state establishments.'"¹⁴

Recently, Justice Thomas has been the most ardent spokesperson for this impulse, arguing for disincorporation of the Establishment Clause. In several concurring opinions, Justice Thomas has resurrected the argument that "the Establishment Clause is a federalism provision, which, for this reason, resists incorporation."¹⁵As he explained in Cutter v. Wilkinson, "The text and history of the Clause may well support the view that the Clause is not incorporated against the States precisely because the Clause shielded state establishments from congressional interference."¹⁶Under this approach:

[I]t may well be that state action [in the Establishment Clause context] should be evaluated on different terms than similar action by the Federal Government. . . . Thus, while the Federal Government may "make no law respecting an establishment of religion," the States may pass laws that include or touch on religious matters so long as these laws do not impede free exercise rights or any other individual religious liberty interest.¹⁷

Justice Thomas's call for a federalism constraint on the application of the Establishment Clause is not new; almost immediately following the incorporation of the Clause in 1947,¹⁸critics attacked the Court for imposing a uniform, national approach to the ordering of church-state relationships-one that did not consider local traditions and conditions.¹⁹As one critic wrote in

1954, "[S]tate activity which does not in any way infringe the religious freedom of the individual, should not be forbidden to the states simply because it happens to fit the Supreme Court's idea of a 'law respecting an establishment of religion.'"²⁰These early critics argued that the First Amendment was "not only an express guarantee of personal religious freedom against the threat of federal action, but also an application of the principle of federalism. . . . The two [religion] clauses together were intended to remove the subject of religion completely from the federal competence."²¹

Although incorporation of the Establishment Clause quickly became accepted legal canon, the federalism critique never died, particularly among more conservative scholars. In 1978, Michael Malbin of the American Enterprise Institute wrote that the language of the Establishment Clause was designed to prohibit Congress "from passing any law that would affect the

[then] religious establishments in the states."²²More recently, Professors

Akhil Amar, Gerard Bradley, Daniel Conkle, and Steven Smith have offered federalism critiques of the Clause, all of which attack the Everson interpretation that the Clause erected "a wall of separation between church and State."²³Professor Amar writes:

[A]s originally written, [the Establishment Clause] stood as a pure federalism provision. . . . [T]he clause was utterly agnostic on the substantive issue of establishment; it simply mandated that the issue be decided state by state and that Congress keep its hands off, that

Congress make no law "respecting" the vexed question.²⁴

While most scholars-including myself-acknowledge a federalism component to the Establishment Clause that left the issue of state establishments to each state,²⁵a few critics, like Justice Thomas, have argued that rather than intending the Clause simply to be "agnostic" about religious matters, the Framers consciously designed the clause to protect and preserve the then-existing state religious establishments.²⁶As Professor Bradley argues, the final language of the religion clauses "tracked the federalist view that Congress had no enumerated authority over religion in the first place, as well as the basic antifederalist endeavor to preserve existing state constitutional regimes from intermeddling federal legislation."²⁷

A final component of the renewed federalism critique is represented in the arguments of Professors Amar, Smith, and Conkle, who claim that federalism concerns represented the sole or overriding consideration of those who drafted the Clause.²⁸According to this critique, the only point of consensus among the various factions during drafting and ratification was one of federalism: to exclude federal authority over all religious matters, leaving all regulation, pro and con, to the states.²⁹Furthermore, this critique continues, because there was no consensus on the meaning of the Establishment Clause, it lacks a substantive quality-rather, it is primarily, if not solely, a jurisdictional device.³⁰As Professor Smith has written, "The religion clauses were understood as a federalist measure, not as the enactment of any substantive principle of religious freedom."³¹

There are several implications to this federalism critique. If there is no substantive meaning to the Establishment Clause, then the last sixty years of church-state jurisprudence that has relied on the Jeffersonian-Madisonian interpretation of the Clause lacks legitimacy. Equally significant, the federalism critique argues that incorporation of the Establishment Clause should be reversed, along with many of the Court's decisions restricting state practices supporting religion.³²"[A]bandoning [incorporation] would certainly give the states far more latitude to acknowledge, accommodate, and promote religion than current doctrine allows."³³Potentially, "If the Establishment Clause were not applied to the states, states would ostensibly be free to establish a state church or to give aid or preference to a particular religion."³⁴

There would be no federal bar to official acknowledgments of religion, noncoercive school prayer, or many forms of financial aid to religion, provided such actions withstood free exercise, free speech, and equal protection challenges.³⁵In essence, "If the Establishment Clause does not restrain the States, then it has no application . . . where only state action is at issue."³⁶

To be sure, not all federalism advocates call for disincorporation; however, most argue that the Framers believed the states should have flexibility in their own church-state relationships, such that rights could take on different meanings at the state and local levels.³⁷Like Justice Thomas, they insist that states should be able to fashion funding and other supportive relationships with religious institutions, constrained only by their own constitutional provisions.³⁸

States and locales...